Kaplan v. 2108-2116 Walton Avenue Realty Co.

Silverman, J. P.,

dissents in a memorandum as follows: I would reverse the order appealed from and grant plaintiff’s motion for summary judgment. Defendant’s belated claim (made in reply papers on a motion for reargument) of an alleged oral promise to permit suspension of payments under the mortgage is unsupported by any factual detail. "It is incumbent upon a defendant who opposes a motion for summary judgment to assemble, lay bare and reveal his proofs, in order to show that the matters set up in his answer are real and are capable of being established upon a trial. * * * An opposing affidavit by an attorney without personal knowledge of the facts has no probative value and should be disregarded” (Di Sabato v Soffes, 9 AD2d 297, 301). I disregard plaintiff’s claim that the alleged agreement is invalid as a violation of the provision of the mortgage forbidding oral modification as no record reference is given and this provision is apparently not in this 100-page record.